• Key point. If two musical works are so strikingly similar as to preclude the possibility of independent creation, unauthorized copying may be proven without showing that the infringer had “access” to the original work.
A federal appeals court ruled that Andrew Lloyd Webber may have engaged in copyright infringement of a religious song composed by Ray Repp, a composer of liturgical music. Ray Repp has written religious music for more than thirty years, and is a leading composer and performer of liturgical folk music. His music is included in many hymnals and songbooks, and has been published by the Lutheran, Episcopal, Presbyterian, and Catholic churches as well as by the Church of the Brethren. In 1978 he wrote the song “Till You.” The song is liturgical in nature, and is based on passages from the Book of Luke commonly known as the “Magnificat.” It has been distributed on albums and cassettes, as well as 25,000 copies of sheet music. Repp claimed that Andrew Lloyd Webber had access to this song and unlawfully copied it in writing the “Phantom Song” in his musical “The Phantom of the Opera.” A federal district court dismissed the lawsuit largely on the basis of Webber’s own testimony that he never heard the song, that he disliked “pop church music,” and that his interest in church music was limited to the “English choral tradition.” Repp appealed, and a federal appeals court reversed the district court’s ruling and ordered the case to proceed to trial.
The federal appeals court began its opinion by observing:
Copyright infringement is established when the owner of a valid copyright demonstrates unauthorized copying. Actual copying must first be shown, either by direct evidence or by indirect evidence. The latter type of evidence includes access to the copyrighted work, similarities that [demonstrate] copying between the works, and expert testimony.
The court noted that “if the two works are so strikingly similar as to preclude the possibility of independent creation, copying may be proved without a showing of access.” The court continued: “While there was little, if any, evidence demonstrating access, there was considerable evidence that Phantom Song is so strikingly similar to Till You as to preclude the possibility of independent creation and to allow access to be inferred without direct proof.” In support of its conclusion the court referred to two expert musicologists who had testified that there was “no doubt” that Webber’s “Phantom Song” was strikingly similar to and based upon “Till You”. Repp v. Webber, 132 F.3d 862 (2nd Cir. 1997).
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